© Springer-Verlag Berlin Heidelberg 2015Jan AlbersResponsibility and Liability in the Context of Transboundary Movements of Hazardous Wastes by SeaHamburg Studies on Maritime AffairsInternational Max Planck Research School for Maritime Affairs at the University of Hamburg2910.1007/978-3-662-43349-2_1
In December 1999, in the wake of the 5th Conference of the Parties to the Basel Convention held in Basel, Switzerland, the then Executive Director of the United Nations Environmental Programme (UNEP), Klaus Töpfer, praised the recent adoption of the Basel Protocol on Liability and Compensation1 as a “major breakthrough”.2 He claimed that “[f]or the first time, we have a mechanism for assigning responsibility for damage caused by accidental spills of hazardous waste during export or import”. However, it did not take long before voices were being raised that cast a rather poor light on the Basel Protocol. The Protocol was criticised by legal scholars as being “far from perfect and in many respects […] unclear and confusing”.3 Others used even stronger language: “The Liability Protocol is […] a text with as many holes and exclusions as Swiss cheese” and “[it] is a dangerous precedent and is unlikely to ever, provide adequate relief for victims of toxic waste or serve as an incentive to avoid hazardous waste trafficking”.4 Similarly, it was charged that “the treaty offers very little that is positive and much that is highly negative”, and, “[w]hat was adopted in Basel in 1999 […] represents a successful attack on the Basel Convention’s own fundamental principles and a dangerous international precedent”.5 By means of this juxtaposition the nature of the major burden facing the Basel Protocol becomes plainly apparent: Diverging political, commercial and environmental interests put high requirements on a legal regime governing civil liability for damage resulting from the transboundary movement of hazardous wastes, and these can hardly be met by a compromise regulation as represented by the 1999 Basel Protocol.
The Basel Protocol on Liability and Compensation was adopted in 1999 to supplement the legal framework established by the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal and to provide for rules imposing civil liability and making compensation available for the victims of pollution caused by hazardous wastes. The Basel Protocol, however, has yet not entered into force, and keeping in mind the harsh criticisms as outlined above, it is also questionable whether it will ever receive sufficient support from States to obtain the required number of ratifications in order to enter into force.
The present work starts exactly at this juncture. Its primary purpose is to outline the legal rules and regimes applicable for the imposition of responsibilities and liabilities for damage resulting from the transboundary movement of hazardous wastes by sea. Given the fact that the entry into force of the Basel Protocol is uncertain, it is necessary that this work begins with an analysis of responsibility and liability according to the rules of customary international law and according to the regulations of international conventions and regulations that are currently in force and applicable to the cases under consideration. The prospective regime of liability and compensation as proposed by the Basel Protocol can only be examined in detail in a second step, which may then illuminate the possible advantages and disadvantages of this potential solution de lege ferenda. As a result of this consideration it will be possible to make a recommendation whether it seems appropriate to agree with Klaus Töpfer and to further expedite and promote ratification of the Basel Protocol, or whether the criticisms voiced against the Protocol are actually true and efforts should rather be made to develop and strengthen other mechanisms to protect victims of pollution and the environment.
A. The Factual Perspective: Transboundary Movements of Hazardous Wastes by Sea
The transboundary movement of hazardous wastes represents a commercial activity promising huge returns for the persons engaged in the movement. On the downside, hazardous waste movements may pose a substantial threat for human health and the environment. Since, moreover, hazardous wastes are usually shipped in large amounts, incidents involving hazardous wastes are likely to affect large areas with adverse effects on a potentially large number of humans, animals and natural resources. The fact that incidents may occur during each stage of a transboundary movement of hazardous wastes by sea can be illustrated in the following examples6:
The M/V “Khian Sea” case7: In 1986 the city of Philadelphia in Pennsylvania (USA) instructed a private waste management company to export 14,000 tons of toxic ash derived from a municipal incineration plant. The bulk cargo was loaded on board the M/V “Khian Sea”, which headed for the Caribbean to dump the ash on a man-made island in the Bahamas. The Bahamian government, however, refused to permit the discharge. The ash was then relabelled and the vessel tried to call at several other ports in the Caribbean, South America and Western Africa.8 In spring 1988, the crew finally succeeded in discharging the ash onto a beach near Gonaives in Haiti by declaring it as topsoil fertilizer. After approximately 4,000 tons had been discharged, the Haitian government recognised the true nature of the cargo and ordered the vessel to reload, which, however, left Haitian waters without reassuming the ash.9 Thereafter, the crew of the M/V “Khian Sea” was unsuccessful in its attempts to unload the remaining ash at several ports around the globe. The vessel was sold, reflagged and renamed, and when she arrived at Singapore in November 1988 her cargo was missing. It is assumed that the ash had been dumped into the Indian Ocean.10 Whereas two executives of the vessel operating company were sentenced to imprisonment by US courts for the dumping into the high seas, no one could be held liable for the costs of re-importation and clean-up at the Haitian shore.11 It was only in 2000 that a major part of the ash located in Haiti was re-shipped to the US and finally deposited at a landfill in Pennsylvania.12
The M/V “Khian Sea” case is only one striking example of major environmental incidents that have occurred in the context of transboundary movements of hazardous wastes by sea. Another example of wastes being sent around the globe is the M/V “Zanoobia” case from 1987. An Italian waste management company shipped approximately 2,200 tons of chemical waste to Djibouti where the drums were intended to be buried. After the local authorities refused to allow the discharge, the cargo was sent to Venezuela for interim storage, then to Syria and finally back to Italy. Several people that came into contact with the wastes during the movement fell ill.13
Further examples include, amongst others, the Kassa Island incident in Guinea,14 the Koko Beach incident in Nigeria,15 the Thor Chemicals incident in South Africa16 and the Formosa incident in Cambodia.17
The M/V “Probo Koala” case18: The M/V “Probo Koala” was a Greek OBO-carrier chartered by an oil trading company with head offices in Amsterdam, Lucerne and London. In 2006, the vessel was used to temporarily store and process petrol blend stocks and naphtha while she anchored in the Mediterranean off the coast of Gibraltar. During this caustic washing process (“sweetening”), naphtha or petrol blends are mixed with caustic soda (liquid sodium hydroxide) to reduce the level of mercaptans in order to obtain tradable petrol for the African market. The highly toxic residues of this caustic washing were collected in the vessel’s slop tanks.19 In June 2006, the M/V “Probo Koala” called at the port of Amsterdam to refuel and to empty her slop tanks, whose content was declared as ordinary slops from oil tank washings. However, an unusual and pungent odour emanated from the samples taken by the port operator, so that the further discharging of the slop tank contents was prohibited.20 The vessel then sailed to Paldiski in Estonia and loaded approximately 26,000 tons of petrol to be shipped to Nigeria. After delivery of the cargo the vessel called at Abidjan in Ivory Coast on 19 August 2006 and emptied her slop tanks. Approximately 528 cubic metres of chemical wastes were delivered to a local waste management company21 that had been founded only recently.22 The liquid wastes were simply dumped at various sites in and around Abidjan lacking any kind of soil sealing. It is officially estimated that as a result of direct contact and indirect exposure by consumption of contaminated water, groundwater and food products, 15 residents died, 69 were hospitalised and more than 108,000 people sought medical attention because of intestinal and respiratory problems, nausea and vomiting.23 When the international public became aware of this incident the oil trading company attempted to settle this matter by mutual agreement with the Ivorian government. According to this agreement the Ivorian government received a contribution of GBP 100 million towards the costs of restoration of environmental damage and towards compensation payments for the families of killed and injured residents.24 Notwithstanding this step, a class action lawsuit aggregating 31,000 residents was instituted before the London High Court in 2009, this later being withdrawn after the oil trading company agreed to an out-of-court settlement paying GBP 1,000 to each victim.25